Fresh off their successful use of filibuster-busting reconciliation rules to pass their health-care-cum-student-loan-overhaul, Democrats preparing to write a new budget blueprint have to decide whether to give the controversial practice another go later this year.
Sen. John McCain (Ariz.) and other Republicans have said they are less inclined to cooperate with Democrats after the majority's use of reconciliation for a package of health care reform fixes, so using the tactic may be the only way to claim another major legislative victory before the crucial midterm elections — especially since the special election of Sen. Scott Brown (R-Mass.) in January fully empowered Senate Republicans to employ filibusters.
Senate Democrats — for whom the filibuster-proof process is most advantageous — so far appear to be of two minds on how the latest reconciliation debate ended up for them.
One senior Senate Democratic aide noted, "I don't feel like Democrats are currently licking their procedural wounds" after the comparatively quick health care reconciliation debate in March. However, the aide added, "Nobody's ruling it in yet."
But another senior Senate Democratic aide said the debate was "not a relatively bloodless process. It was very long and very painful." This aide noted that several tense weeks were spent vetting provisions with their House counterparts and the Senate Parliamentarian in an attempt to write a bill that did not violate reconciliation rules.
That "scrub" of the bill worked to keep the major provisions of the measure intact, and Senate GOP threats of endless amendments and weeks of floor debate never materialized.
However, Senate Republicans were successful in forcing the House to repass the reconciliation measure when they convinced the Parliamentarian that two small provisions violated reconciliation rules. Democrats did not have the 60 votes necessary to waive the points of order the GOP lodged against the provisions.
Senate Budget ranking member Judd Gregg (R-N.H.) said last week that he believes Republicans scored a lot of points during the reconciliation debate, in which they offered many amendments designed to force difficult votes on Democrats. (The Democratic leadership had already telegraphed their intention to vote every amendment down.)
"We made points that are going to be worth telling," said Gregg, noting Democrats are on record as voting against amendments designed to eliminate cuts to Medicare, among other things.
"If I were a Democrat, I don't think I'd want to go through that again," he said. "It's going to be very hard to defend those votes."
Democrats will have to decide soon whether they are going to use reconciliation again this year. If so, they will have to write reconciliation instructions into the new budget they will attempt to adopt later this spring.
Of the possibility that the majority might use reconciliation again, Gregg said, "I almost dare them to do it." But he said Democrats might be wise to avoid a new budget resolution altogether given such a document would only give Republicans another opening to challenge Democrats' credibility on fiscal issues.
Senate Budget Chairman Kent Conrad (D-N.D.) did not appear too keen on repeating the process when asked during the final hours of his chamber's health care debate.
"I think I want to let the dust settle on these controversies before we start kicking up dust for the future," Conrad said on March 25.
He added, "We've not had those discussions."
The need for reconciliation language to tie legislation strictly to budget items would likely take off the table comprehensive authorizing bills, such as broad immigration reform and an overhaul of financial regulations.
Still, the choices are many, as are the strategy options: Do Democrats try to do a host of small items in a reconciliation package, a couple of bigger items, or settle on one rifle-shot approach?
A rifle shot can be easier for leaders to find the votes for the package and sell to the public, but with so many items being held hostage by Republicans, the temptation is there, particularly among more liberal lawmakers, to pack as much of the president's agenda in as possible.
Two years ago, Democrats chose the rifle-shot approach, using reconciliation to easily pass an earlier set of changes to the student loan program when President George W. Bush was still in office.
Republicans had a far harder time passing their reconciliation package before they lost their majorities in 2006. That unwieldy package included a complicated mishmash of party priorities, ranging from a mandate that everyone get digital television to cuts to Medicare and Medicaid and even such sundries as an extension of milk subsidies. Leaders ultimately were forced to drop a top priority — opening up the Arctic National Wildlife Refuge to oil drilling — when moderate House Republicans pledged to block it.
Although Democrats haven't decided yet what to do, reconciliation could be used to pass such controversial items as President Barack Obama's proposed new fee on the biggest banks to recoup losses from the Wall Street bailout bill, as well as other tax hikes Obama has proposed on the wealthy that are sure to be opposed by the GOP. It could also be used to pass Obama's plan to shift tax breaks from businesses conducting business overseas to businesses hiring workers domestically, or for Sen. Jim Webb's (D-Va.) proposal to tax bank bonuses.
Reconciliation could also be used to pass any number of jobs-related items, such as transportation funding or subsidies for clean energy production. But Democratic aides said they do not expect that a broader energy and climate package would fit in reconciliation. That's in part because chunks of such complicated legislation could run afoul of the Byrd rule requiring every line to have a budgetary impact. But there also is a political dimension: The use of reconciliation for a climate bill has been strongly opposed by moderate Democrats in both chambers, many of whom are leery of having to take another set of tough votes on a partisan energy package with the country still polarized over the new health care law and the elections creeping ever closer.
House Democratic aides said they have yet to have full discussions on what reconciliation items to include in the budget, but the subject will be among the items on the agenda once lawmakers return from the spring recess.